Porn pirates spawn torrent of suits

SAN JOSE, Calif. — In mid-July, Yolanda P. opened her mailbox in Visalia, Calif., to find a letter that has been landing in tens of thousands of mailboxes across the country _ she was being sued by an adult film company for illegally downloading porn on her computer.

These allegations of porn piracy are now part of a torrent of legal battles unfolding coast-to-coast in an explosion of copyright lawsuits filed over the past year. From Silicon Valley to Washington, D.C., adult filmmakers are unleashing their lawyers in federal courts to sue John and Jane Does for stealing porn and sharing it on an increasingly porn-happy Internet.

Duplicating in many ways the music industry's ill-fated campaign a few years ago to stem music file sharing, the adult film world has now sued more than 200,000 initially anonymous defendants nationwide in an attempt to track down and punish those who illegally download porn movies with titles such as "A Punk Rock Orgy in the Woods" and "Dexxxter." The lawsuits name "Doe" defendants until they can unearth the identities of those accused of downloading porn through their Internet providers.

The legal campaign has hit federal courts particularly hard in the San Francisco Bay Area, where the porn industry has lawyers and favors tech-savvy local federal judges, as well as Texas, West Virginia and Chicago, where the primary architect of the strategy, lawyer John Steele, is based. The adult entertainment industry has dubbed Steele the "Pirate Slayer."

Steele calls the lawsuits a simple defense against copyright theft.

"Our clients," Steele said, "are losing millions of dollars from people stealing their movies. They should get their money back from thieves."

But critics, led by the San Francisco-based Electronic Frontier Foundation, say the industry is abusing the court system by casting a wide net that ends with menacing letters to embarrassed targets who'd rather cut a check than fight back and be identified in court as someone who may have downloaded porn.

"The intent of these lawsuits is to get peoples' identifying information and attempt to extort settlements out of them," said Corynne McSherry, EFF's intellectual property director.

The "mass copyright" cases all follow the same format: An adult film company sues scores of anonymous defendants, alleging a particular movie was pirated using the popular file-sharing technology BitTorrent. The number of defendants can be staggering, dwarfing the scope of the music industry's lawsuits; there were 2,100 Does named in one recent San Jose case, and 23,000 in the largest thus far in Washington, D.C.

The end game for the porn industry's lawyers is to identify Does and send them letters, such as the one sent to Yolanda P., who was tracked down through her Comcast account, according to court papers. These letters notify people they can settle for anywhere from $1,500 to $2,500, or fight it out in court and have their names linked to downloading porn.

Most of these people do not want to pay lawyers to fight. But in some instances, judges have invited groups such as EFF to jump in and raise arguments against allowing the cases to proceed on such a mass scale and to prevent the industry's lawyers from securing email account information. Just last week, EFF, at the invitation of a San Francisco judge, argued in a legal brief that the "dragnet" approach to suing violates due process rights in a case against more than 5,000 anonymous defendants accused of pirating the movie "Danielle Staub Raw."

Thus far, both sides can claim some legal victories. Earlier this month, a Chicago federal judge refused to dismiss one of the cases, rejecting arguments the Does have a right to keep their identities confidential when there "appear to be meritorious copyright infringement claims."

But other judges have tossed out lawsuits, including the case in Washington involving the 23,000 defendants. San Jose U.S. Magistrate Judge Paul Grewal recently expressed concern in an order about lumping so many defendants in one case, and another federal judge, Claudia Wilken in Oakland, Calif., on Aug. 11 refused to allow a case to proceed against more than 1,700 separate Does.

"I don't think anyone is saying copyright owners lack the ability to go into court with lawsuits," said Eric Goldman, a Santa Clara University law professor and tech law expert. "The question is whether they can do it in (this) manner."

The porn industry's attorneys say they are on solid legal ground in suing en masse, arguing it is the only practical way to tackle widespread piracy. Steele also acknowledges that he hopes there is a deterrent effect to the legal campaign, and legal experts say that proved to be the case with the music industry, even though it suffered bad publicity when some targets turned out to be misfires, such as people who didn't own a computer or were dead.

"That may have fizzled, but it made people at the margins nervous about file sharing," said Mark Lemley, director of Stanford University's Law, Science and Technology program. With the porn industry's lawsuits, he added, "People are going to think twice about doing this."

McClatchy-Tribune

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